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7 



ON CONFISCATION. 



S P E E C 




's^'H')"bl:iUVyi'^llNlj, UJ^' ILLii^ 

bELIVEHED 

IN THE SENATE OF THE UNITED STATES, 

Wednesday, June 25, 1862. 



The Senate, af? in Committeee of the Whole, 
having resumed the consideration of the bill 
(H. R. No. 471) to confiseate the property of 
rebels for the payment of the expenses of the 
present rebellion, and for other purposes — 
Mr. BROWNING said: 
Mr. President : We are in the midst of a 
war for the support of the Constitution. li 
there had been no departure from its principles, 
no violation of its provisions, there would have 
been no war. If all the citizens of the United 
States would return to their allegiance to the 
Constitution, and submit to its requirements, 
the war would at once cease. It could not be 
prolonged an hour. We are in arms against 
the rebels because they are in arms against the 
Constitution. They are struggling to overthrow- 
it; we, to maintain and uphold it. this is the theo- 
ry of the war. The practice should conform to the 
theory. If it does not we are fighting in vain. We 
should keep the re-establishment of the authority 
of the Constitution and the Government over all 
the States of the Union steadily before us as 
the great central object of our efforts. Wg 
cannot succeed unless we, ourselves, keep within 
the limits of the Constitution, and respect and 
submit to its authority. When we put aside 
its provisions, break over its restraints, and go 
outside of its limits, we become co-workers with 
rebels and traitors in their work of destruction. 
If, in the progress of the war, the Constitution { 
falls, whether by the act of the rebels or by I 
our act, or by the joint action of both, I repeat | 
that the people will have fought and bled in | 
vain, and have expended their treasure in vain, j 
The Senator from Massachusetts [Mr. Sumner] { 
in his discussion of the bill under considera-l 
tion, has given expression to such novel and I 
extraordinary views, and has announced, as un- 1 
deniable law, principles of such dangerous \ 
tendency, and which, if carried into legislation, I 
will be so fatally mischievous in their conse- ! 
quences, thtvt I cannot permit them to go to the I 
country, and into the permanent records of its ' 
history, without my earnest protest against! 
them, in hov?ever feeble terms that protest mav i 
be made. ' i 



The Senator has truly stated the ends we 
have in view, " national unity under the Con- 
stitution of the United States." These ends 
cannot be attained by the measures he propo- 
ses. If it be conceded that they would secure 
" national unity," they would fail of the other 
end, to secure it "under the Constitution of the 
United States," for they would tliemssives over- 
throw that Constitution. The Senator strug- 
gles with difficulties which could not beset him 
if his 0)ilt/ object was " national unity under 
the Constitution of the United States." This 
object can be easily reached if vie forbear in- 
fringing any provision of the Constitution, or 
going outside of it. 

But there is another object whieh cannot be 
reached without going " outside of the Consti- 
tution," and assuming and esereising powers 
aot granted by it ; and I presume that I do the 
Senator no injustice in suppnsingr him to be 
more earnestly in pursuit of this object than 
ciuy other. If not, whence the necessity of 
quitting the Constitution and exoloring the 
history of the world, from the time " when 
.:>hab took the vineyard of Naboth, and David 
gave away the goods of one of the confeder- 
ates of Absalom ;" through all the barbarisms 
of intervening ages, for sources from which 
Congress is to draw its power to do the act 
which he proposes ? Why refer us to the con- 
liicalion bills of Colonial Legislatures, passed 
during the struggle with the mother country? 
They were restrained by no such provisions as 
are^contaioed in our Constitution, but gave un- 
bridled license to their exasperated and re- 
vengeful passions. The wrong and injustice 
of these colonial acts of confi'scation, and ex- 
perience of the evils that grew out of them, 
unquestionably led to the adoption of the clause 
of the Constitution prohibiting a like power p 
Congress. So far from the long array of colO; 
nial acts, with which the Senate has been pre- 
sented, being authority to justify Congress in 
similar legislation, they are, on the contrary, 
authority directly against it. While these acts 
were yet upon the statute-books, and their ef- 
fects present and palpable all over the country, 



the very men -who were actors in the exciting 
events out of which they grew, fearing that a 
time might come when the Congress of the na- 
tion, blinded by passion, might venture to fol- 
low the bad and dangerous precedents of the 
Colonial Legislatures, took the most effective 
measures to guard against it by inserting positive 
prohibitions in the Constitution of the Union. 

Still less support is derived from the practice 
of the English Government. What the British 
Parliament may have done heretofore affords 
no safe analogy for the interpretation of the 
Constitution of the United States. The consti- 
tutions of the two countries are widely and es- 
sentially different. I institute no comparison 
of merit between them. The British constitu- 
tion is unquestionably a magnificent work, per- 
haps the best that could be devised for the gov- 
ernment of the British people. But it is not 
our Constitution. It is not a written constitu- 
tion. " What Parliament declares to be the 
constitution of England is the constitution of 
England." Parliament may pass bills of at- 
tainder, outlawry, and confiscation, and execute 
them, and no question of power can be made, 
for it is omnipotent, and its will the supreme 
law of the land. 

The constitution of England is subordinate 
to the will of Parliament. The Congress of the 
United States is subordinate to the Constitution. 
It is hedged in with restraints which it cannot 
break over or trample upon without most seri- 
ous injury to the structure of the Government, 
and great danger of sapping its foundations. 

I therefore put aside, as inapplicable to our 
condition, all the examples from ancient and 
modern history. They neither prove nor illus- 
trate any point in this debate. If we have the 
power to pass the bill before us we derive that 
power from the Constitution, and from no other 
source. The practice of other nations, and of 
the colonies prior to the adoption of the Con- 
stitution, can give us no aid. The Constitution, 
and the practice of our own Government under 
it, and the expositions of it by the judicial tri- 
bunals, and by the great men who made it, who 
had studied it and understood it, and compre- 
hended the grandeur and harmony of all its 
principles, should alone be consulted, alone 
accepted as authority. 

The Senator was right when be said, " in 
every Government bound by a written Consti- 
tution, nothing can be done which is not in 
conformity with the Constitution." After this 
announcement we had a right to expect an 
argument which would uncover and " exhibit 
clearly" the sources of power in the Constitu- 
tion itself, instead of a learned and interesting 
disquisition upon the history of confiscations in 
other countries, and a deduction of authority 
from that. I know he claims the power under 
the Constitution, and cites the provisions from 
which he derives it ; but it is only necessary to 
analyze his argument, indeed only necessary to 



call attention to it, to expose its infirmity ani. 
to show how far he has permitted his wishes to 
mislead his judgment. 

After stating that " the Constitution has not 
been silent on this question," he recites the par- 
ticular provisions which, in his opinion, con- 
tain the grant of power to Congress to do all 
which the bill before us proposes. He says the 
Constitution " has expressly provided that Con- 
gress shall have power, first, ' to declare war.' " 
This is undeniably true, and the question 
arises spontaneously to the lips, is this a bill to 
declare war ? If so, the Senator is right in 
claiming for Congress the authority to pass it. 
If it is not, then be gets no support from this 
provision of the Constitution. He might aa 
well deduce from it the power to charter a na- 
tional bank as the power to free slaves and con- 
fiscate property. 

Secondly, " to grant letters of marque and 
reprisal." 

The question again comes, is this a bill to 
" grant letters of marque and reprisal ?" If 
not, why quote the clause ? for, by virtue of it, 
and from it, Congress gets no shadow of author- 
ity to do any other act whatever. 

Thirdly, " to make rules of captures on land 
and water." 

The Senator has, no doubt inadvertently, 
misquoted the clause. As it stands in the Con- 
stitution it is to '' make rules concerning cap- 
tures on land and water." But the bill neither 
makes rules of captures, nor concerning cap- 
tures, and does not relate, in the remotest de- 
gree, to captures, either on land or water, and 
it cannot, therefore, lean upon this clause for 
support, whether we give it the one reading or 
the other. 

Fourthly, " to raise and support armies.'' 
Fifthly, " to provide and maintain a navy." 
Will any Senator have-the temerity to attempt 
to point out in what way this bill tends to raise 
and support an army, or to provide and main- 
tain a navy ? Would it not be a mockery of 
the Senate to ask it to listen to an argument 
intended for such a purpose? 

Sixthly, " to make rules for the government 
and regulation of the land and naval forces." 

There is not one word in the bill that was 
put there with any expectation of its having 
the slightest effect on the government and reg- 
ulation of either the land or naval forces. 

Seventhly, " to provide for calling forth the 
militia to execute the laws of the Union, sup- 
press insurrections, and repel invasions." 

There is no invasion to repel, and provision 
has long since been made and carried into ef- 
fect for calling forth the militia to suppress the 
insurrection. No one has yet had the hard- 
ihood to assert that this bill is intended for any 
such purpose. If it is, it wouM be difficult to 
imagine one less likely to accomplish the end. 
Mr. SUMNER. May I interrupt the Sena- 
tor? 



Mr. BROWNING. Yes, sir. 

Mr. SUMNER. I understood the Senator 
to say that the bill under discussion, which is 
the House bill, was not founded on the provis- 
ion of the Constitution concerning captures ; 
that, in short, it did not in any way relate to 
captures. Now, I have in my hand that bill, 
and will read the introductory clause. It is as 
follows : 

" That all the estate and property, money, 
' stocks, credits, and effects of the persons here- 
' after named in this section are hereby forfeited 
< to the Government of the United States, and are 
' declared lawful subjects of seizure and of prize 

* and capture wherever found, for the indemnity 
' of the United States against the expenses of 

* suppressing the present rebellion." 

The bill, therefore, is derived directly, spe- 
cifically, unequivocally, in just so many words, 
out of the positive language of the Constitution 
of the United States. 

Mr. BROWNING. Mr. President, I am re- 
plying to the Senator's speech on the basis on 
which he made it. I am not willing that he 
shall shift his ground now. At the time he 
made his speech and gave utterance to the lan- 
guage that I have quoted, the bill from which 
be now reads had never made its appearance 
in this body. 

Mr. SUMNER. Will the Senator allow me 
to interrupt him again ? 

Mr. BRO WNING. Yes, sir. 
Mr. SUMNER. I had already offered that 
bill myself. It was on the table of the Senate 
as my bill, to be voted on at the proper time 
as an amendment to the Senate bill ; and I 
now read from my owq bill, which has since 
been adopted in the other House. 

Mr. BRO WNING. The bill was not before 
the Senate at the time the discussion was going 
on. It may have been on the table. 

Mr. SUMNER. The Senator will pardon 
me. When I rose to make my speech, this bill, 
in the form of an amendment or substitute, had 
been already offered by me. It was on the ta- 
i ble ; and notice was given that at the proper 
1 time, when it would be in order, it would be 
I pressed to a vote ; and my speech was made to 
i support that bill. Therefore the Senator is en- 
l tirely mistaken — I know he does not intend to 
I do me injustice — when he says that I change 
! my ground. Sir, I have no disposition to do 
tthat. I wish to meet this question frankly un- 
I der the Constitution of the United States. I 
tknow the strength of the position which I occu- 
fpy, and I kuow it is only by misunderstanding 
lit that it can be answered. 

Mr. BROWNING. Mr. President, I will 
^endeavor not to misunderstand, and am very 
ssure I will not willingly misrepresent the Sena- 
^tor. I desire to understand him distinctly. I 
jam very sure I will not misrepresent him. 
Mr, SUMNER. I know that you will not. 
Mr. BRO WNING. It may be true, as he 



says — it matters not to me, so far as this dis- 
cussion is concerned, whether it is or not — that 
the bill from which he now reads had been pre- 
sented. Conceding it to be so, I think there is 
no fair-minded lawyer who will take the pains 
to examine the constitutional provisions, who 
is familiar with the law of nations, and who 
will compare them with this bill, who will not 
at once concede that the bill, if it does in terms 
relate to captures, does so in terms only for the 
purpose of evading a plain constitutional pro- 
vision ; that it does not come at all within the 
spirit or the letter or the intention of the Con- 
stitution. 

These, I believe, are the only specific grants 
of power upon which the Senator relies ; these 
are the only sources from which he draws to 
justify the bill. What conceivable measure 
can passion or caprice suggest, that would not 
find as much support in the provisions referred 
to as a bill to free slaves and to confiscate 
property ? And if this is the best showing of 
authority that learning, talent, and ingenuity 
can make from the Constitution, may we not 
safely conclude that none whatever is to be 
found within its lids ? 

A very important part of the Senator's speech, 
and which appears to me to be among the 
most heterodox, and dangerous, and indefensi- 
ble doctrines he puts forward, are ranged un- 
der the inquiry, " what are the rights against 
enemies which Congress may exercise in war ?" 
To this inquiry the Constitution gives a very 
explicit answer. They have all already been 
enumerated. Congress may "declare war, 
grant letters of marque and reprisal, and make 
rules concerning captures on land and water." 
It may " raise and support armies ;" " provide 
and maintain a navy ;" " make rules for the 
government and regulation of the land and 
naval forces ;" " provide for calling forth the 
militia to exeeute the laws of the Union, sup- 
press insurrections, and repel invasions ;" and 
" provide for organizing, arming, and discip- 
lining the militia, and for governing such part 
of them as may be employed in the service of 
the United States." There is the answer, and 
there is the whole of it. These enumerations, 
extracted from the Constitution, declare all the 
powers " which Congress may exercise in war ;" 
and these it may exercise just as well in peace 
as in war. Congress has no powers which are 
peculiar to a state of war — none which are 
•' dormant in peace and aroused into activity 
only by the breath of war." Yet this I under- 
stand to be the view which the Senator takes 
of the Constitution, and of the powers of Con- 
gress under it. I understand him to contend 
that Congress may exercise. powers to-day, be- 
cause war exists, which it cannot assert to-mor- 
row if peace ensues ; and it is from this assump- 
tion of a shifting power that he deduces author- 
ity to Congress to pass the bill under conside- 
ration. I wish to do him no injustice, and 



therefore quote his own languacje. He says : 

" There is not one of the rights of war which 
' Congress may not invoke. There is not a sin- 
' gle weapon in its terrible arsenal which Con- 
' gress may not grasp." 

And again : 

" But when claiming these powers for Con- 
' gi-ess, it must not be forgotten that there is a 
' limitation of time with regard to their exercise. 
' "Whatever is done against the rebels in our char- 
' acter as belligerents under the rights of war, 
' must be done duringwar, and notafter its close." 

That this is true when spoken of the Govern- 
ment I now admit, and always have admitted ; 
but that it is true when spoken of Congress I 
utterly deny. " There is not one of the rights 
of war which " the Government " may not in- 
voke." There are many which Congress dare 
not touch without becoming a usurper. And 
now I deLsire, in all kindness, and with all 
possible respect, to ask the gentleman whether 
it is his deliberate judgment, as a lawyer and a 
Senator, that Congress possesses attributes and 
may exercise powers in the exigency of war 
which it does not possess, and may not exer- 
cise, when peace and tranquility overspread the 
land? 

Mr. SUMNER. Does the Senator wish an 
answer ? 

Mr. BROWNING. I have certainly no ob- 
jection to an answer. 

Mr. SUMNER. I answer most clearly that 
Congress has powers during war and against 
public euamies which it has not during peace 
towards any citizens of the United States, 
There are rights of war which belong to all 
nations, and the United States is not without 
them. Those rights may all be exercised 
through Congress, but they must be exercised 
in the time of war. /. s rights of war, they are 
limited to war. There are penal statutes, stat- 
utes against treason, statutes for the punish- 
ment of rebellion, which may be enforced af 
anytime, both in war and in peace ; but the 
rights of war grow out of war, and can be ex- 
ercised only during war. 

Mr. BROWNING. I am happy to find 

Mr. SUMNER, if the Senator will pardon 
me, to go back to the topic on which we were 
before 

Mr. BBOY/NING. I cannot give way for 
a speech to be interpolated, and I do not wish 
to go back from the point I am discussing. 

Mr. SUMNER. I merely wish to call the 
Senator's attention to a point on which he dif- 
fered from me. I stated that the speech I had 
the honor of making some time ago was made 
on my own bill. 

Mr. BROWNING. I concede it, sir. 

Mr. SUMNER. I find that the pamphlet 
edi*ionj which I have in my hand, but which I 
had not when the Senator did me the honor to 
to it some moipents ago, is entitled as fol- 



lows : "Speech of Mr. Sumner, of Massachu- 
setts, on his bill for the confiscation of proper- 
ty and the liberation of slaves belonging to 
rebels." It was from that bill that I read, a 
bill founded on that provision of the Constitu- 
tion which confers upon Congress the power to 
regulate captures. 

Mr. BROWNING. I am perfectly willing 
to concede all that. It neither changes nor 
modifies any single point in this discussion. I 
am very happy to find that I had neither mis- 
understood nor misrepresented the Senator in 
assuming that he contended that under the Con- 
stitution Congress might exercise powers to- 
day, because war existed, which it could not 
exercise tomorrow if peace ensued. If this be 
so, then I desire to know whether all the pow- 
ers of Congress are not derived from the Con- 
stitution ; whether it possesses any not granted 
by the Constitution ; and what particular clause 
or provision of that instrument it is which in- 
vests it with authority to do an act today which 
it would not have been equally competent to do 
at any single hour of the last twenty years? 
Yet this proposition must be maintained- to 
justify the action which is urged upon us. It 
must be shown that a state of war enlarges our 
powers; for the. right is claimed to judge of, 
and decide upon, military necessities ; and the 
Senator truly says this, if done at all, "must be 
done during war, and not after its close." The 
reasoning upon this subject proceeds thus : " it 
is the right of Congress to judge of, determine 
upon, and order to be executed, all measures 
dem.anded by military necessities ; but military 
necessities do not arise when peace prevails, 
therefore Congress cannot exercise these pow- 
ers in times of peace, but can when war is 
raging, and therefore the powers of Congress are 
augmented and amplified by a state of war," 

The premises are false, and the all deductions 
made from them are likewise false. It is not 
true that Congress may assume and exercise 
all the active war powers in the actual prosecu- 
tion of war. Ihe Constitution invests it with 
no such prerogative. It is not true that Con- 
gress may decide upon the measures demanded 
by military necessities, and order them to be 
enforced. If it can do so in one instance, it 
can do so in every instance. If it can grasp 
and wield this power in one case, it can do so 
in all cases. I deny that the right exists, in 
any case, to pass in judgment upon what is 
properly called a military necessity. It may 
become a military necessity when an array, with 
its munitions and supplies, has been transported 
across a stream, to destroy the bridge that bore 
them safely over, and le.uvs only the deep and 
rapid river in the rear. It maj be a military 
necessity to preserve the bridge, that the means 
of safe retreat may be at band if adverse for- 
ture should require it. It may become a mili- 
tary necessity, as an army mnTches through the 
enemy's country, to wast3 and devastate it, and 



leave only ruin and desolation behind to sig- 
nalize its passage. It may become a military 
necessity, upon the surrender of a beleaguered 
city, to give it up to pillage and plunder, or to 
wrap it in flames and reduce it to a smouldering 
and blackened heap of ruin. It may become 
a military necessity, upon the approach of the 
hostile army, to destroy all the stores and mu- 
nitions of war, and retreat instead of fight. 
It may become a military necessity to refuse 
quarter in battle, or to put to the sword all the 
prisoners who may be captured. Some of these, 
I admit, are extreme cases, and of rare occur- 
rence; but they have occurred, and will occur 
again, and when they do they must be promptly 
met and acted upon. 

They are all of the class properly called mil- 
itary necessities. And now, I again ask whether 
it is seriously contended that Congress has 
either right or power to judi^e of and determine 
upon any one of them a month in advance of its 
occurrence ? Whatever the seeming necessity 
may be now, when the month has elapsed it may 
no longer exist. May Congress to-day order that 
upon the capture of a city a week hence it 
shall, as a military necessity, be sacked and 
burnt? However great the apparent necessity 
for such measures now, the events of an hourmay 
so change the face of affairs that the necessity 
will be found in leniency, forbearance, and pro- 
tection. May Congress to-day determine that 
the military necessities of the next battle to be 
fought will require that no quarter shall be 
given, and that all prisoners shall be put to the 
sword ? Let us register such an edict, and on 
the page that chronicles man's deepest and 
darkest infamy we will outlive the emperor who 
fiddled by the light of his magnificent capital 
in conflagration. 

These necessities can be determined only by 
the military commander, and to him the Con- 
stitution has intrusted the prerogative of judg- 
ing of them. When the Constitution made the 
President " Commander-in-Chief of the army 
and navy of the United States," it clothed him 
with all the incidental powers necessary to a 
full, faithful, and efficient performance of the 
duties of that high office ; and to decide what 
are military necessities, and to devise and exe 
cute the requisite measures to meet them, is 
one of these incidents. It is not a legislative, 
but an executive function, and Congress has 
nothing to do with it. Congress can '' raise 
and support," but cannot command armies. 
That duty the Constitution has devolved upon 
the President. It has made him Commander- 
in-Chief, and therefore Congress cannot be. 
Nor can Congress control him in the command 
of the army, for, if it can, then he is not Com- 
mander-in-Chief, and the assertion of the Con- 
stitution to that effect is a falsehood. And 
whenever Congress assumes the control of the 
army in the field, it usurps the powers of a co- 
ordinate department of the Government, de- 



stroys the checks and balances provided for the 
safety of the people, and subverts the Constitu- 
tion. Legislative encroachment upon the pre- 
rogatives of the other departments thus boldly 
once begun, where will it end ? It will go on 
increasing in strength, and pushing its cop- 
quests, till it subordinates the Constitution it- 
self to its will, and becomes as omnipotent as 
the British Parliament. It is from the legisla- 
tive department of the Government that dan- 
ger is to be apprehended ; not the executive or 
judicial. They are inherently weak, and we 
cannot too carefully guard against encroach- 
ments upon their prerogatives by the legislative 
department. In discussing the distribution of 
the powers of Government to the three depart- 
ments, and the danger to be apprehended from 
them, Mr. Madison, in the forty-eighth number 
of the Federalist, says : 

" It is evident that neither of them ought to 
' possess, directly or indirectly, an overruling in- 
' fluence over the others in the administration 
' of their respective powers. It will not be de- 
' nied that power is of an encroaching nature, 
' and that it ought to be effectually restrained 
' from passing the limits assigned to it." * 

* «■ * * * " The legislative 
' department is everywhere extending the sphere 
' of its activity, and drawing all power into its 
' impetuous vortex." * * "'^ " It is 
' against the enterprising ambition of this de- 
' partment that the people ought to indulge all 
' their jealousy and exhaust all their precautions. 
' The legislative department derives a superiority 
' in our Government from other circumstances. 
' Its constitutional powers being at once more 
' extensive and less susceptible of precise limits, 
' it can with the greater facility mask, under 
' complicated and indirect measures, the en- 
' croachments which it makes on the co-ordinate 
' departments." 

Bat to return again for a moment to the 
question whether Congress can control the Pres- 
ident in the supreme command and direction 
of the army, I ask attention to the fifty-ninth 
number of the Federalist, by Mr. Hamilton, 
He says : 

" The President is to be Commander-in-Chief 
' of the Army and Navy of the United States. 
' In this respect his authority would be nominally 
' the same with that of the king of Great Britain, 
' but in substance much inferior to it. It would 
' amount to nothing more than the supreme com- 
' ma nd and direction of the military and naval forces, 
' as first general and admiral of the Confederacy ; 
' while that of the British king extends to the 
' declaring of war and to the raising and regula- 
' ting of fleets and armies, all whicli by the Con- 
' stitution under consideration v^ould appertain 
' to the legislature." 

Here the respective powers of the President 
and Congress, as connected with the Army, are 
most clearly and distinctly stated. Congress 
is to raise and regulate the Army ; when raised 



6 



and regulated, the President is to have the su- 
preme command and direction. 

Again, in the seventy-fourth number, the 
same distinguished statesman, recurring to the 
same subject, said : 

" The President of the United Stales is to be 
' Commander-in-Ghief of the Army and Navy of 
' the United States, and of the militia of the 
' several States vrhen called into the actual ser- 
' vice of the United States. The propriety of this 
' provision is so evident, and it is, at the same 
' time, so consonant to the precedents of the 
' State constitutions in general, that little need 
' be said to explain or enforce it. Even those of 
' them which have, in other respects, coupled the 
' Chief Magistrate with a council, have, for the 
' most part, concentrated the military authority 
' in him alone. Of all the cares or concerns of 
' Government, the direction of war most peculi- 
' arly demands those qualities which distinguish 
' the exercise of power by a single hand. The 
' direction of war implies the direction of the 
' common strength ; and the power of directing 
' and employing the common strength forms an 
' usual and essential part in the definition of the 
' executive authority." 

This was all said before the adoption of the 
Constitution, and to commend it to the accept- 
ance of the people. At a later day, after it had 
been adopted, and questions, as now, arose as 
to the extent of the legislative power under it, 
Mr. Madison, in discussing a bill before Con- 
gress, said: 

" He did not accede to the principle of the bill. 
' He did not see any such immediate prospect of 
' a war as could induce the House to violate the 
' Constitution. He thought that it was a wise 
' principle in the Constitution to make one branch 
' of the Government raise an army and another 
' conduct it. If the Legislature had the power 
' to conduct an army they might embody it for 
' that end. On the other hand, if the President 
' was empowered to raise an army, as he is to 
' direct its motions when raised, he might wish 
' to assemble it for the sake of the influence to 
' be acquired by the command. The Constitu- 
' tion has wisely guarded against the danger on 
' either side." — 4 Elliott's Debates, p. 444. 

Now, hear again the Senator from Massachu 
setts state the legal proposition from which he 
deduces the power to Congress to give the sanc- 
tion of enactment to the measures which he 
proposes. Overturn his premises, and his con 
elusions naturally and necessarily fall with 
them. In stating what he claims to be a grant 
of power to Congress by the Constitution to 
control armies and conduct war, he says : 

" Language could not be broader. Under its 
' comprehensive scope there can be nothing es- 
' sential to the prosecution of the war, its conduct 
' its support, or its success ; yes sir, there can be 
' nothingessential to its success which is not posi- 
' tively Avithin the province of Congress. There 
' is not one of the rights of war which Congress 



' may not invoke. There is not a single weapon 
' in its terrible arsenal which Congress may not 
' grasp." 

The great architects of the Constitution, who 
had studied it profoundly, and mastered and 
comprehended its philosophy, and who could 
not be driven by popular clamor in after years 
to mar their majestic work, have placed and 
left on record, for the admonition and guidance 
of those who were to come after them, the sol- 
emn and authoritive declaration, that it was 
" a wise principle in the Constitution to make 
one branch of the Government raise an army 
and another conduct it." The fathers of the 
Constitution, whose long experience of the 
imperfections of existing systems had taught 
them all the necessities to be provided for by 
organic laws, distributed the powers of Gov- 
ernment to different departments, and to pre- 
vent conflicts and collisions, preserve order, 
and secure harmony in the working of the sys- 
tem, they erected barriers to keep them separ- 
ate, and to confine each department to its ap- 
propriate sphere, and restrain it from encroach- 
ments upon another. ' 

The honorable Senator recognises no such 
barriers, 'no such separation of powers, but 
claims that all executive powers which the 
President may exercise in the prosecution of 
the war are held by him in subordination to the 
will of Congress, subject to its control and di- 
rection, and all of which Congress may exercise 
concurrently with the President if it so chooses. 
He puts the matter thus : 

" Doubtless there are rights of war, embracing 
' confiscation, contribution, and liberation, which 
' may be exercised by the commanding general 
' in the field, or may be ordered by the President, 
' according to the exigency." * ->i- * -5^ 
' But all these rights of war which I have re- 
' viewed to-day are deposited with the Govern- 
' ment of the United States, which means Con- 
' gress in conjunction with the President." 

I will not pause to controvert the very re- 
markable assertion that the President and Con- 
gress constitute the Government of the United 
States, but take issue at once with the Senator 
upon the not less extraordinary proposition that 
the rights of war are deposited with the Gov- 
ernment to be exercised by Congress and the 
President conjointly. There is not, sir, a single 
power of the Government, so far as I am in- 
formed or believe, not one single power, which 
may be exercised either conjointly or concur- 
rently by the different departments of Gov- 
ernment. There are certain acts to be per- 
formed which cannot be perfected without the 
assent of both the executive and legislative de- 
partments, but the part to be performed by each 
is clearly and distinctly defined, and neither can 
trench upon the province of the other. They 
are separate and distinct acts, to be performed 
by each department for itself, by its separate 
action, and not by the conjoint action of both. 



The part to be performed by the President must 
be performed by him alone. Congress can 
neither do nor control the doing of it. If the 
act is legislative, it must be done by Congress ; 
if executive, by the President, and the Presi- 
dent alone. « 

Mr. SUMNER. May 1 interrupt the Sena- 
tor tliGrG i 

Mr. BROWNING. Yes, sir. 
Mr. SUMNER. I should not interrupt him 
if I did not hope to bring his attention to the 
precise point. The Senator says that if the act 
be legislative, it must be by Congress alone ; 
if executive, by the President alone. I would 
ask the Senator whether every legislative act 
must not receive the signature of the President ? 
Receiving the signature of the President, does 
not every legislative act become the conjoint 
work of the Congress and of the President ? 
That is what I had in view when I said that 
these rights of war were to be exercised by 
Congress in conjunction with the President ; 
for nothing done by Congress can receive final 
effect until it has the signature of the President. 
Mr. BROWNING. Mr. President, the lan- 
guage of the Senator upon which I am com- 
menting was, " there is not one of the rights of 
war which Congress may not exercise ; there is 
not a weapon in its terrible arsenal that Con- 
gress may not grasp." Nothing is said about 
the President. 

Mr. SUMNER. And the Senator quoted the 
words of mine, " in conjunction with the Presi- 
dent." An act of Congress becomes a law only 
through the signature of the President. 

Mr. BROWNING. I am as fully aware of 
that as the Senator can be. As I stated al 
ready, there are certain acts which cannot be 
perfected without the action of both Congress 
and the President. I stated that, and stated it 
distinctly ; but, sir, do they act conjointly or 
concurrently? Neither. Congress has its part 
to perform, and the President has his part to 
perform ; and Congress can no more control 
him in giving or withholding his approval to a 
bill, than he can control Congress in giving or 
withholding its approval. The acts are sepa- 
rate and distinct, to be performed by each de- 
partment for itself, wholly irrespective of the 
wishes and wholly emancipated from any re- 
straint by the other. 

I say, sir, if the act is legislative, it must be 
done by Congress ; if executive, by the Presi- 
dent, and the President alone. Congress can- 
not act with him either conjointly or concur- 
rently. He is as supreme in his sphere as the 
legislative department is in its sphere ; and in 
the performance of the duties with which the 
Constitution has charged him he cannot, with- 
■^^ut an abnegation of his authority, submit to 
1)6 controlled by either Congress or the people, 
hey being as completely subject to the Consti- 
ation and as much bound to yield to its au- 
hority as he is. It is admitted by the.Senator 



that " there are rights of war, embracing con- 
fiscation, contribution, and liberation, which 
may be exercised by any commanding general 
in the field, or may be ordered by the President 
according to the exigency." This, sir, is an 
admission fatal to the claim of power he makes 
for Congress to exercise the same " rights of 
war, embracing confiscation, liberation, and 
contribution ;" for to show that the President 
may exercise them is to demonstrate that Con- 
gress cannot. I repeat what I have before said, 
that there is no single power granted by the 
Constitution to be exercised indifferently by 
the President and Congress. The jurisdiction 
is exclusive in each. If the one possesses it, 
the other cannot. If this were not so, there 
would be continual and dangerous collisions 
between these two departments of Government. 
One might choose to exercise the power in one 
way, and the other precisely in the opposite 
way, and this would result in such fatal antag- 
onisms as would not only retard but absolutely 
suspend the wheels of Government. 

The exercise of the law-making power by 
the President would be rank usurpation. It 
is as flagrant usurpation, and far more danger- 
ous to the integrity of the Constitution and 
the Government, for Congress to assume exec ■ 
utive power. 

Another error into which zeal for confiscation 
in this particular mode, and by congressional 
action, has hurried the Senator, is to be found 
in the assertion that " it is clear " " that there 
is no limitation to the amount of fine which may 
be imposed for crime, so that in its sweeping ex- 
tent it may practically take from the criminal 
all his estate, real and personal." Before dog- 
matizing on the Constitution, it might be well 
to read it. I quote the eighth artitle of the 
amendments : 

"Excessive bail shall not be required, nor ex- 
' cessive fines imposed, nor cruel and unusual 
' punishments inflicted." 

Yet, in the teeth of this, the Senator asserts 
that " it is clear that there is no limitation to 
the amount of fine which may be imposed for 
crime." With this ' claim of omnipotence for 
Congress, it ought not to surprise us to hear 
gentlemen contend that for the very common 
and not very atrocious offence of assault and 
battery the whole of a man's estate, real and 
personal, may be swept from him by confisca- 
tion, and his family pauperized, if Congress sc 
wills it, and that all constitutional barriers tc 
a like punishment for treason may be easilj 
surmounted by a resort to the unlimited and 
illimitable power of imposing fines. Whal 
matters it that the Constitution interposes tc 
stay the hand from giving up the estate to ab 
solute forfeiture for treason ? We have sworr 
to support the Constitution, and are troubled 
with some " compunctious visitings of con- 
science " when the precise thing which the Con 



stitution, in terms, forbids is proposed ; but bow 

easy to calm the moral perturbation by a sneer 
at constitutioual scruples, and reacb tbe same 
end by the shorter and directer road of a fine 
•wbose "insatiable maw" sball incontinently 
swallow all at a gulp. 

Mr. Justice Story, in his Commentaries on 
the Constitution, says of this clause : 

" The provision would seem to be.wholly un- 
' necessary in a free government, since it is 
' scarcely possible that any department of such a 
'government should authorize or justify such 
' atrocious conduct. It was, however, adopted 
' as an admonition to all departments of the na- 
' tional Government,' to warn them against such 
' violent proceedings as had taken place. in Eng- 

* land in the arbitrary reigns of some of the 
' Stuarts. In those times, a demand of excessive 
' bail was often made against persons who were 
' odious to the court and its favorites, and on 
' failing to procure it they were committed to 
' prison. Enormous fines and amercements were 
' also sometimes imposed, and cruel and vindic- 
' tive punishments inflicted. Upon this subject 
' Mr. Justice Blackstone has wisely remarked, 
' that sanguinary laws are a bad symptom of the 
' distemper of any State, or at least of its weak 
' constitution. The laws of the Roman kings, 
' and the twelve tables of the Decemviri, were 
' full of cruel punishments ; the Porcian lavv^, 

* which exempted all citizens from sentence of 
' death, silently abrogated them all. In this 
' period the Republic flourished. Under the em- 
' perors severe laws were revived, and then the 
' empire fell." 

It was to prevent a repetition of these op- 
pressions, these atrocities, which, in times of 
high party excitement and exasperation, had 
often been perpetrated, and which the conven- 
tion, judging more correctly than the commen- 
tator, feared might be resorted to again, that 
this provision was inserted. Long experience 
had already taught the civilized world that un- 
due severity of punishment, instead of prevent- 
ing and diminishing crime, tended to provoke 
and increase it. The progress of Christianity 
had developed a wish to mitigate, as far as com- 
patible with the imperfection of human institu- 
tions, the rigor of criminal laws which involved 
i the innocent in the punishments due to the 
guilty; and this provision, as well as that 
against forfeitures, and the passage of bills 
of attainder, was inserted with a view to the 
accomplishment of that object. 

To a greater or a less extent, the wife must 
suffer for theguilt of the husband, and the child 
for that of the parent ; but this should be so 
anly to the extent which is inevitable in God's 
economy of the world, and human laws should 
36 confined within that limit. It was the pur- 
30se of the framers of the Constitution to pro- 
■.ect the innocent families of offenders from 
itter impoverishment and ruin for crime which 
hey had not committed, and could not prevent. 



It was the intention to leave to such families the 
means of subsistence and livelihood, after the 
law had exhausted its power of punishment on 
the criminal ; but this object has not been at- 
tained, if the unlimited power of imposing fines 
exists, as contended for by the honorable Sen- 
tor from Massachusetts. If the existence of the 
power can be demonstrated, there is a manifest 
disposition, in some quarters, to use it to the 
full extent suggested by him, " so that in its 
sweeping extent it may practically take from 
the criminal all his estate, real and personal." 

The emergency, has come which the Consti- 
tution contemplated. The stupendous, unpar- 
alleled, and unprovoked crime of the traitors 
in arms against the Government has justly ex- 
asperated us, and inspired a desire to strip them 
mercilessly, and with inexorable hand, of all 
their earthly possessions. Many of them de- 
serve no mercy ; and when the necessities of 
the war demand it, they may be stripped, but not 
by Congress. Congress can neither judge of 
and determine military necessities in the field, 
nor execute military powers. Nor is this what 
is suggested by this part of the Senator's 
speech, but to provide by law for sweeping 
away everything by civil proceedings in the 
courts. When this is attempted, we must look 
to the Constitution for the extent of our pow- 
ers ; and when limitations are found, respect 
and obey them. All limitations in this respect 
upon the military power are subject to modifi- 
cations by the exigencies and necessities of the 
war, to be judged of by the war-executing 
power ; but no such modifications supervene to 
amplify the authority of Congress. The trai- 
tors deserve the severest punishments, and we 
are anxious to strip them of their estates by 
absolute forfeiture; but, upon looking into the 
Constitution, we find our hands are tied ; the 
power to do this is denied us. We are exas- 
perated and restive under the restraint, and 
seek for some other avenue through which we 
may reach the same end. We resort to fines 
which shall be so large as to absorb everything, 
and practically accomplish the same result 
which would be attained by forfeitures and con- 
fiscations ; but the Constitution has hedged 
against us here by providing that excessive 
fines shall not be imposed. 

Now, in these circumstances, what is the 
duty of Congress ? Clearly, I think, to obey 
the Constitution, and keep within its limitations, 
and neither trample upon nor evade them. 
These restraints were imposed because the ex- 
perience of centuries had shown that power was 
always struggling for expansion, for the en- 
largement of its area of action ; and that this 
was especially true in times of domestic distur- 
bance and strong popular excitement ;- and it 
was foreseen that, upon such occasions arising 
here, it might be deemed a political necessity, 
by Congress, for the punishment of great offend- 
ers, who had committed stupendous crimes, to 



9 



/ ^ 



pass bills of attainder, to confiscate estates for- 
ever, or to impose excessive fines, which would 
practically accomplish the same thing as abso- 
lute confiscatioQ. The convention believed the 
power a dangerous one, capable of great abuses, 
and sure to be, at such tinaes, so abused as ten 
times over to counterbalance all possible good 
that could be attained by its exercise — capable 
of being used as the instrument of crippling the 
other departments of the Government, and final- 
ly of usurping all their functions ; and there 
fore, in the most emphatic terms, denied the 
possession of any such powers at all. Congress 
can exercise no powers not granted by the Con- 
stitution ; but, with respect to those above enu- 
merated, and some others, the convention was 
not content with simply withholding the grant, 
but put an express negation upon them all ; 
thus tying the hands of the legislative depart- 
ment of the Government as tightly as it was 
possible to do by a written Constitution. 

And, as has been most clearly and forcibly sta- 
ted by the able, distinguished, and venerable 
Senator from Vermont, [Mr. Gollamek,] the 
prohibitions were inserted because it was fore- 
seen that occasions would arise when Congress 
would think it necessary to exercise the forbid- 
den powers ; when the strongest temptation to 
their exercise would exist; when popular cla- 
mor might demand their exercise ; and when the 
danger of their possession would be enhanced 
just in proportion to the intensity of popular 
feeling and resentments. These restrictions 
were not provided for periods of tranquillity, 
when all the departments of Government would 
be moving smoothly and safely in their legiti- 
mate spheres, without temptation to reach for 
and grasp powers which did not belong to them, 
but for times of turbulence and danger, when 
inflamed passion would override reason, and 
resentment dethrone discretion and justice. It 
is no answer and no argument to say that it 
appears to us to be both necessary and just to 
confiscate, absolutely, the property of traitors, 
or to impose fines which, " in their sweeping 
extent, sha,ll practically take all their property, 
real and personal," in punishment of their 
great crime. It was for this very reason, that 
it might seem to us necessary and just, and 
because the great and wise patriots, sages, and 
statesmen of the Revolution, who had had 
practical experience of the effects of such 
measures through all the stormy years of strug- 
gle for independence through which they had 
just passed, had been taught by that experi- 
ence that they were neither necessary nor just, 
that the power to adopt them, when we might 
want to adopt them, was withheld from us. It 
would have been foolish to forbid a power to 
Congress which Congress would never want to 
assert ; and it was precisely for the reason that 
it was believed the time would come when the 
Congress would want to do the prohibited 
things that the power to do them was denied. 



Now, to assert that this rebellion cannot be 
suppressed without a resort to measures whicli 
we have no power under the Constitution to 
adopt, is to concede the success of the rebel- 
lion, to admit that the Constitution is over- 
thrown, and the Government a failure. It is 
to admit that the aspirations of our fathers were 
but the dreams of enthusiasts, and that the in- 
stitutions they founded, though flourishing for 
a time while the skies were clear and calm, 
have been prostrated in ruin by the first storm 
of faction that broke upon them. This I am 
not willing to concede. The legitimate and 
acknowledged powers of the Government, un- 
der the Constitution, are fully adequate to all 
the necessities of selfdefence, protection, and 
perpetuation, if we will only give them fair 
play — only confine each department to its own 
orbit, let it work with its own instrumentalities, 
and prevent collisions which shall disturb and 
unsettle the delicately adjusted balance. To 
save the Government we must save the Consti- 
tution. When the Constitution is given up and 
we have to resort to means outside of it, the 
Government is given up with it. There is an 
end of it. Some sort of political organization 
may still exist, some sort of political machinery 
may take its place; but it will no longer be the 
Government of our fathers. Its whole essence 
and structure will be changed. No landmarks, 
no guides, no guarantees will be left, and no 
citizen will know his rights or duties, except 
as they are declared from day to day by the 
capricious, unsteady, unregulated, and irrespon- 
sible will of Congress. 

Now, Mr. President, when we shall deliber- 
ately have carried into a law the assertion that 
there is no limitation, except the will of Con- 
gress, "to the amount of fine which may be 
imposed for crime," we have gone far, very far, 
in the work of demolition. We have thrust one 
supporting stone from the arch. Segregation 
will have begun, and all the separate pai-ts of 
the structure must soon fall asunder. And 
bow easily, how naturally, how necessarily thia 
system of reasoning, when once adopted, leads 
its votary on, step by step, to the denial or per- 
version of all that has been regarded as settled 
by the jurisprudence of the past, and drives him 
into a legal labyrinth, from which his only 
guide is the thread of the in rem ! All proceed- 
ings in rem for the condemnation of captures 
have heretofore rested upon the guilt of the 
thing proceeded against. I am not aware of 
an exception. The honorable Senator admits 
that this is so, and then, to maintain a show of 
consistency, proceeds in an effort to prove that 
all the property of a traitor participates in his 
guilt, and is all. therefore, liable to be proceed- 
ed against in rem, and absolutely confiscated, 
wholly irrespective of proceedings in personam 
against the guilty owner. 

Mr. President, I certainly intend to treat the 
distinguished Senator from Massachusetts and 



10 



his opinions with the greatest possible respect, 
and trust that I am guilty of no discourtesy 
when I ask whether anything can be more fal- 
lacious or more dangerous than his reasoning 
upon this subject. He says : 

" Through his property the traitor is enabled 
' to devote himself to treason, and to follow its 
' accursed trade, waging war against his country, 
' so that his property may be considered guilty 
' also." 

This one brief sentence sweeps away the an- 
cient basis of proceedings in rem, and lays a 
new founda,tion upon entirely new principles. 
It is no longer a question of the actual partici 
pation of the propf^rty in guilt, but the guilt of 
the property in all cases is to be inferred from 
the guilt of the owner, however innocent and 
impassive the property may be, and however 
far separated from its owner and the theatre of 
his crime. I beseech of the Senator to pause 
and review his doctrines, and earnestly to con- 
template the dangerous issues to which they 
lead. Is it any more true of the traitor than it 
is of the thief, the burglar, or the niurderer, 
that his property enables him to devote himself 
to crime, " and follow its accursed trade ?" The 
man without property may shoulder his musket 
and levy war against his country. The man 
of wealth may do the same thing, but his wealth 
enables him to engage others in the same work. 
The man without property may devote himself 
to the work of robbery or assassinalion. So 
may the man of wealth, but he has the means 
of suborning others as confederates in wicked 
ness and crime. There is absolutely and 
positively no difference in the effect produced 
by treason upon the property of the offender 
and the effect produced by any other crime; 
and if treason subjects all the property of the 
offender to be proceeded against in rem for the 
punishment of the owner, without any reference 
to the uses to which the property has been ap 
plied, the same effect must be produced, and 
the same consequences ensue, to all the proper- 
ty of every other public offender, whatever his 
crime may be. Neither the Constitution nor 
law recognises any distinction in this regard 
between treason and other crimes. If, then, 
we accept the law as stated by the Senator 
from Massachusetts, a total revolution is wrought 
in our criminal jurisprudence, and, in despite 
of all the safeguards of the Constitution, pro- 
ceedings in 'personam, for the punishment of 
crime may be totally ignored, and punish- 
ment inflicted by proceeding against property 
alone ; or, what is yet worse, by punishing the 
same act twice, by separate proceedings, either 
simultaneously or at different times, against 
both person and property. 

Confiscation of property for the crime of the 
owner cannot be effected by proceedings in 
rem, but can follow only upon the personal con- 
viction of the offender, in punishment of his 
crime. The law upon this subject is stated 



with so much force and perspicuity by Judge 
Sprague, in his opinion recently delivered in 
the case of the Amy Warwick, that I venture 
to ask the attention of the Senate to a conside- 
ration of his views. He says : 

"Another objection to those decisions of the 
' district courts is founded upon the apprehen- 
■ sion that they may lead to or countenance cruel 
' and impolitic confiscations of private property 
' found on land. This apprehension is iinfound- 
' ed. No such consequence can legitimately fol- 
' low. Those decisions undoubtedly assert that 
' the United States have the rights of belligerents. 
' But the extent of those rights on land, or the 
' manner in which tbey were to be exercised, was 
' not discussed. They were not even adverted to, 
' except to say that enemj^'s property found by a 
' belligerent on land, within his own coui>try, on 
' the breaking out of a war, will not be con- 
' demned by the courts, although it would be if 
' found at sea. This distinction, so far as it goes, 
' tends to show that the doctrine of maritime cap- 
' tures is not to be applied to seizures on land. But 
' the danger upon which this objection is founded 
' does hot arise from the administration of the 
' prize laws by the courts, or the exercise of bel- 
' ligerent rights by military commanders upon 
' military exigencies. The objection really arises 
^ from fear of the legislation of Congress. It is 
' apprehended that they may pass sweeping or 
' general acts of confiscation, to take practical 
' effect only after the rebellion shall have been 
' suppressed ; that whole estates, real and per- 
' sonal, which have not been seized during the 
' war, may be taken and confiscated upon com- 
' ing within the reach of the Government, after 
' hostilities shall have ceased. This, as we have 
' seen, would not be the exercise of belligerent 
' rights, the war being at an end. Belligerent 
' confiscations take effect only upon property of 
' which possession is taken daring the war. As 
' against property which continues under the 
' control of the enemy they are wholly inopera- 
' tive. If possession be acquired by or after the 
' peace, then previous legislation may take ef- 
' feet, but it will be by the right of sovereignty, 
' not as an act of war. Under despotic govern- 
' ments the power of municipal confiscation may 
' be unlimited, but under our Government the 
' right of sovereignty over any portion of a State 
' is given and limited by the Constitution, and 
' will be the same after the war as it was before. 
' When the United States take possession of 
' any rebel district they acquire no new title, but 
' merely vindicate that which previously existed, 
' and are to do ouly what is necessary for that 
'purpose. Confiscations of property., not for any 
' use that has been made of it, which go not against 
' an offending thing, but are inflicted for the personal 
' delinquency of the owner, are punitive ; and pun- 
' ishment should be inflicted only upon due conviction 
' of personal guilt." 

Without multiplying authorities, I may safely 
say that this is undeniably the law, I do not 
understand the Senator to deny that it is the 
law. Indeed, be distinctly admits that " the 



11 



reason for proceedings in rem is," " that the 
thing is in a certain sense an offender, or at 
least has co-operated with the offender, as in 
the case of a ship in the slave trade." Admit- 
ting the law and the restraints of the Constitu- 
tion, for they cannot be denied, he simply ad- 
vises that we shall disregard them both. . 

He spurns everything which stands in the 
•way of his wishes, and boldly and defiantly as- 
serts that the Constitution gives to the citizens 
of this country no guarantees which Congress 
is bound to respect. This is his language : 

" Glorious as it is that the citizen is surround- 
' ed by the safeguards of the Constitution, yet 
' this rule is suspended by war, which brings into 
'■ being other rights, which know no master." 

Among the other safeguards with which the 
Constitution has surrounded the citizen, are the 
following : 

" Congress shall make no law respecting an 
' establishment of religion, or prohibiting the 
' free exercise thereof; or abridging the freedom 
* of speech or the press ; or the right of the peo- 
' pie peaceably to assemble, and to petition the 
' Goveynment for a redress of grievances." 

According to the Senator these are all sus- 
pended ; and to-day Congress may pass laws 
establishing a national religion, prohibiting the 
free exercise of religion, abridging the freedom 
of speech and of the press, and punishing the 
people for peaceably assembling to petition for 
redress of grievances. If all these safeguards 
are superseded, why not? What is to hinder 
if the disposition to do so shall chance to exist ? 
I cannot hear such doctrines deliberately an- 
nounced upon the floor of the American Senate 
without the most serious alarm, and being 
forced to ask myself, where are we drifting ? 

Mr. SDMNER. Does the Senator attribute 
any such doctrines to me ? They exist only in 
his own imagination, not in anything I have 
ever conceived, certainly not in anything I have 
ever uttered. I have simply said that the rights 
of war are without any limitations in the Con- 
stitution. The rights of the citizen are always 
under the safeguard ^f the Constitution; and 
now that we are engaged in war we have no 
more power as regards the citizen to establish 
a national religion or to suspend any of those 
other safeguards, than we have in time of peace. 
I never conceived any such idea, nor has any- 
thing ever fallen from me which could have 
given rise to such an idea. 

Mr. BROWNING. Mr. President, I read 
again, in the hearing of the Senate and the 
Senator, his own language : 

" Glorious as it is that the citizen is surrounded 
'by the safeguards of the Constitution, yet this 
' rule is suspended by war, which brings into be- 
' ing other rights, which know no master." 

Mr. SUMNER. That is, the rights of war. 
I speak only of the rights of war; I do not 



allude to anything else under the Constitution. 
The rights of war, I say, know no master. 

Mr. BROWNING. " Glorious as it is that 
the citizen is surrounded by the safeguards of 
the Constitution, yet this rule is suspended." 

And what are these other rights brought into 
being " which know no master?" And with 
whom are they deposited, and by whom are 
they to be exercised? Not the people, for if 
this new doctrine be true, all the safeguards 
which the Constitution provided for them are 
superseded. It is Congress which is to "know 
no master." It is Congress which is to pursue 
its objects outside of the Constitution, and to 
dominate over everything and everybody, with 
no guarantees for anything or anybody, except 
its own moderation and forbearance. 

May I not conclude that the Senator himself 
is convinced that the measures he proposes and 
the bill he advocates cannot be passed under 
and in harmony with the Constitution ? If he 
believed that he could accomplish his ends 
without departing from the Constitution or in- 
fringing its provisions, would he ever have ven- 
tured to take shelter under the dangerous, rad- . 
ical, and revolutionary doctrine that the safe- 
guards with which the Constitution has sur- 
rounded the people are superseded ; that other 
rights, which know no master, are brought into 
being; and that Congress may pursue its ob- 
jects outside of the Constitution? 

It was not without surprise that I heard the 
Senator announce the double character of the 
rebels as a discovery which relieved the subject 
of all difSculty and embarrassment, and placed 
the powers which he claims for Congress be- 
yond further question. Who has discussed this 
question without looking at them in the double 
aspect of criminals and enemies? He says: 

"Regarding the rebels as criminals, you may 
' so pursue and punish them." 

This nobody doubts or controverts. But, 
regarding them as criminals, how are you to 
"pursue and punish them?" With sword and 
m usket and bayonet ? With measures of " con- 
fiscation, contribution, and liberation ?" No, 
sir ; but in conformity with the modes prescribed 
by the Constitution and laws. By indictment, 
arrest, and trial before a jury of the country; 
and, when convicted, by inflicting the punish- 
ment previously ascertained and denounced by 
the law. When this is done, the power of pun- 
ishment of the offender as a criminal is ex- 
hausted. As criminals you cannot confiscate 
their property, nor pursue them with bills of 
attainder and outlawry. And this is all the 
answer I desire to give to this suggestion. The 
gentleman proceeds: 

" Regarding them as enemies, you may blast 
' them with that summary vengeance which is 
' among the dread agencies of war." 

Here I will have no controversy with the 
Senator. I accept the proposition as sound 



12 



and true, and in exact harmony witli the Con- 
stitution and international law. It is precisely 
what those of us who oppose this bill have con- 
tended for from the beginning ; and if we will 
adopt and act upon this principle we will not 
hesitate to cease the controversy here, and let 
all these confiscation bills go. For the pres- 
ent we must regard the rebels as enemies, and 
pursue them v/ith " the dread agencies of war." 
To enable us to do so, and do it most efficiently, 
no such legislation is demanded. 

" The drea,d agencies of war" already exist. 
It is only necessary to grasp and wield them ; 
and that is an executive and not a legislative 
function. I cannot give my assent to the dan- 
gerous doctrine, now, I believe, for the first 
time distinctly put forward, that Congress has 
co-ordinate powers with the President in the 
execution of the laws of war. 

It will be observed that the question now 
made is not as to whether the property of reb- 
els shall be subjected to confiscation, nor to 
what extent confiscation shall take place, if re- 
sorted to at all, but one of far greater magnitude, 
namely, who shall conduct the active opera- 
tions of war, and determine upon and enforce 
military necessities ? If the doctrines contended 
for be true, the President is stripped of his 
most valuable prerogatives ; he ceases to be a 
check upon legislative power ; ceases, in fact, 
to be a co-ordinate department of the Govern- 
ment. He will no longer be supreme under 
the Constitution in his constitutional sphere, 
but will be reduced to pitiable dependence 
upon the will of Congress, possessing and ex- 
ercising only such powers as Congress chooses 
to concede, and at such time and in such man 
ner as Congress may think proper to prescribe. 
When this is done the revolution will be com- 
plete. The Government will no longer be the 
Government which was evolved from the con 
vulsions of 1776, and transmitted to us by our 
fathers, and we will have but little left worth 
struggling for. In comparison with thetrtamph 
of this doctrine, the success of the rebellion 
would be insignificant in radical, startling, and 
permanent damage to republican institutions. 

The Senator has carefully avoided any dis- 
cussion, or even expression of opinion, upon the 
question of the relation which the rebels sustain 
to us during the continuance of the war. We 
must recognise them in some distinctive char- 
acter, and deal with them accordingly, conced- 
ing to them all the rights which pertain to that 
character. The Senator felt the embarrass- 
ment of this, and struggled with it, I think in- 
effectually, throughout his speech.— If the char- 
acter of public enemies is conceded, then, while 
the war lasts, we must pursue them with " the 
dread agencies of war," and with them alone ; 
and I have endeavored to show, and think I 
have shown, that the right to use these is de- 
posited in other hands than those of Congress. 
If the character of enemies is denied, and that 



of criminals alone accorded, then we cannot 
pursue them with the "dread agencies of war." 
We can use no more force against them than is 
necessary to arrest them and bring them to 
trial according to the provisions and require- 
ments of the Constitution and laws. 

The Senator says : 

" Standing, as we do, face to face with enemies 
' who are striking at the life of the Republic, it 
' is painful to find ourselves subjected to all the 
' embarrassments of a criminal proceeding, as if 
' this war was an indictment, and the army and 
' navy of the United States, now mustered on 
' land and sea, was only a posse comitatus." 

This, sir, is precisely the character to which 
the arguments and measures of the Senator 
would degrade the army and navy. It is, in- 
deed, the exact proposition he makes. In a 
suijsequent part of his speech he says : 

" Or, regarding them both as criminals and 
' enemies, you may marshal against them all the 
' double penalties of rebellion and of war, or, 
' better still, the penalties of rebellion and the 
' triumphs of war." 

Now, if they are to be dealt with as crimi' 
nalSj our only " triumphs of war " must be the 
triumphs of arrest by the posse comitatus, that 
the offender may be handed over to the judicial 
tribunals, there to be pursued, according to law, 
with the penalties of the law. 

This cannot be done. It would be a viola- 
tion of all the laws of civilized warfare. We 
cannot capture them as eri'^viies in war, and 
proceed at once to punish them as criminals 
under the municipal laws. Would the gentle- 
man himself consent that his theory should be 
reduced to practice? Will he advise that all 
those who have been captured on the field of 
battle, as prisoners of war, shall now, while the 
war yet rages, be indicted, convicted, and exe- 
cuted as traitors ? Does he not know that this 
is utterly impracticable? Does he not know 
that one such execution by us would be the 
signal for retaliation by them upon onr own sol- 
diers, who, by the chances and casualties of 
war, are now prisoners in their hands ? And 
when they had dared to drag one of our brave 
and patriotic soldiers to the gallows, and hang 
him up as a felon, could we retrace our steps ? 
Could we tamely submit to the outrage ? Would 
we dare submit? Submission would annihilate 
our army, ruin our cause, and bring upon us 
the deserved contempt of the world. We would 
be forced by every consideration of self-respect 
and self-preservation, to resent the act by re- 
taliation. The inevitable and shocking result 
would be the brutal and merciless butchery of 
all prisoners on both sides, and to intensify the 
war, and imbue it with- a cruelty, vindictive- 
ness, and ferocity surpassing the murderous 
and bloody warfare of savages, and to make 
reunion and fraternity among our unhappy peo- 
ple an impossibility in all time to come. 



13 



When the war is ended, and the rebellion 
suppressed, we may then resume dominion 
over the rebels as citizens, and indict, try, and 
punish them for their treason to any extent 
which may be deemed wise and necessary. 
But then we must abandon the agencies of war. 
We cannot pursue and capture them as enemies^ 
and at the same time try and execute them as 
criminals. We cannot marshal against them 
at the same time the " double penalties " of 
war and the criminal code. It is neither law- 
ful nor expedient to do so, and the attempt 
only embarrasses and bewilders. 

The Senator says : 

" Dwelling on these things, I feel humbled 
' that the course of the debate has imposed upon 
' me any such necessity." 

The necessity referred to is that declared on 
the threshold of his speech, of opening " the 
question in such a way as to exhibit clearly all 
the points in issue.'''' 

It must be a happy state of mind which ena- 
bles one to abase himself for the short-comings 
of his neighbors, and thank God that he is not 
as other men. He who has attained to such a 
state of perfection as to justify him in doing so, 
must be approaching his apotheosis, and rap- 
idly verging to the point when he shall be with 
drawn trom contaminating contact with the 
world. 

The Senator is Jmvibled by the course of de- 
bate pursued by his brother Senators in this 
Chamber, and deplores the necessity imposed 
upon him of exhibiting " clearly all the points 
in issue." He speaks ex cathedra ; and when 
he has spoken, there is an end of it. The de- 
bate is closed. He has " exhibited clearly all 
ike points in issue." There is nothing further 
to be said. Who can have the presumption, 
the audacity, to doubt as to the course to be 
pursued, or continue the discussion, after his 
oracular enunciation of the law. Listen and 
be enlightened. He says: 

" In point of law " * 45- -a- a t^q 

' may treat the people engaged against us as crim- 
' inalg, or as enemies, or, if we please, as both." 

But shall we treat them as criminals or as 
enemies ? That is the question, and the ques- 
tion which remains unanswered by the Senator. 

"If we treat them as criminals, then we are 
' under the restraints of the Constitution." 

Who has contended for more ? Who has 
asserted more ? This is one of the very prop- 
ositions the advocacy of which by others has so 
humbled him. 

"If y.'-e treat them as enemies, then' we have 
' all the latitude sanctioned by the rights of war." 

Of this who has made any question ? Who 
that has taken part in this discussion has not 
only affirmed it, but earnestly urged the vigor- 
ous employment of all the most terrible agen- 
cies of war to vanquish our enemies and crush 



the rebellion ? Who has humbled him by a de- 
nial of this right ? 

" If we treat them as both, [enemies and crim- 
' inals,] then we combine our penalties from the 
' double sources."' 

Here I take issue with the Senator, and deny, 
in the most emphatic terms, that we may, at 
the same time, treat them both as enemies and 
criminals, and " combine our penalties from the 
double sources." 

I have already remarked briefly on this point, 
and will not now dwell upon it longer. This is 
the main feature of his theory, and to enable 
him to attain the object he has most at heart it 
is necessary that he shall maintain it. His ef- 
fort to do so was able aod ingenious. He will 
pardon me for saying in my opinion it was iar 
from successful. When we treat the rebels as 
criminals, he admits that we are " under the 
restraints of the Constitution." If we treat 
them as enemies, then we pursue them with 
" the dread agencies of war;" but these must 
be wielded by the Army, and not by Congress. 
If we elect to treat them as the one or the other, 
in neither event can the power be claimed for 
Congress to do the act and reach the end at 
which the Senator is aiming ; and it is to escape 
this difficulty, and open a new source of power 
for Congress, that he has taxed bis talents and 
his learning, and been driven, in despite of them 
both, to the extraordinary proposition to treat 
them at the same time both as enemies and 
criminals, and from this makes the illogical de- 
duction that, as in the one character they can- 
not be pursued with war, and in the other can- 
not be pursued in the courts, that therefore 
Congress displaces both the Executive and the 
judiciary, and acquires absolute and unlimited 
control over them in both characters, and may 
proceed to do any and everything which we 
may suppose to be necessary, whether meeting 
the sanction of the Constitution or not. 

The effort to maintain this proposition has 
involved the Senator's argument in inextricable 
confusion. Let me group together a few pas- 
sages culled from different parts of his speech. 
These are his words : 

"In every Government bound bj" a written 
' constitution nothing can be dons which is not 
' in conformitj- with the constitution." 

" The rebels have gone outside of the Consti- 
' tution to make war upon their country. It is for 
' U3 to pursue them as enemies outside of the 
' Constitution, where they have wickedly placed 
' themselves, and where the Constitution con- 
' curs in placing them also." 

We, sir, are bound by a " written Constitu- 
tion," and it is admitted that nothing can be 
done by us "not in eonformiiV wUh the Con- 
stitution," and yet we are told by the same au- 
thority it is our duty to " pursue the rebels 
outside of the Constitution." Can it be ueees- 
sary to repeat what has not be-erft denied, and 



14 



what I apprehend will not be denied, that Con- 
i; gress possesses no power, and can exercise no 
.. power, not granted by the Constitution ? This 
5 being true, Congress can pursue no object out- 
,, side of the Constitution without disregarding 
i the Constitution, and usurping power which it 
t does not possess. The Senator has a work for 
Congress to perform which it cannot do within 
•c the Constitution ; hence his anxiety to prove its 
I right to go outside of it. Even the army can- 
£ not pursue an enemy outside of the Constitu- 
i tion ; that is, it can do nothing in such pur- 
[j suit which is in violation of the Constitu- 
^ tion. Our '■ Government is bound by a writ- 
it ten Constitution, and nothing can be done 
J., which is not in conformity with the Constitu- 
11 tion " by any department of the Government. 
.(; No one of them, executive, legislative, or ju- 
e dicial, can go outside of it to grasp powers not 
X granted by it. Nor is it necessary that they 
j( should. Every power necessary to defence, 
3 protection, ai:d preservation is in the Govern- 
ig ment under the Constitution. All the powers 
i-[ of war are in the Government under the Con 
^n stitution. All belligerent rights are ours under 
jr, the Constitution, including every prerogative of 
il capture, " confiscation, requisition, or libera- 
I]. tion known in war ;" all of which may be as- 
^01 serted by this Government under the Constitu- 
te tion. Every law of nations, with its privileges, 
, 1; protections, and restraints, is ours, under the 
tei Constitution ; and it is not true that any emer- 
le gency has arisen, or can arise, imposing a 
ut necessity to pursue any object outside of the 
p( Constitution. This is the completest and 
y.Q grandest, and best adjusted scheme of govern- 
3 , ment that was ever devised by the wisdom and 
lei patriotism of man. Let us hold it fast to the 
JVlsure foundations on which its great builders 
)le placed it. So long as the different departments 
Jo of Government are held to their proper orbits, 
rulthere is no power which can by possibility be- 
'at'come necessary for the suppression of the rebel- 
jtrlion, the condign punishment of treason, and 
rjf the re-establishment of the authority of the 
sy^oGrOvernmeut wherever it has been displaced, 
peithat may not be asserted by the Government 
within the Constitution. It is only where one 
cujdepartment invades the prerogatives of another 
nuthat it becomes necessary for it to go outside 
to of the Constitution. 

uii The Senator wishes to accomplish an object 
acwhich is now fully within the constitutional 
injpower of the Executive. Am I wrong in sup- 
cbposing that he distrusts the Executive, and 
mfears the power will not be pushed to the ex- 
efjtremity which he desires? Hence, he claims 
acthe power tor Congress. But Congress cannot 
tbissume and exercise it within the Constitution, 
iifcherefore he is driven to claim the right for 
aiCongress to go outside of the Constitution to 
li^each this particular end. 
pc I again bring together paragraphs from dif- 
Ifferent parts of his speech that their strong an- 



tagonisms may be seen at a glance, that it may 
be perceived at once how utterly irreconcilable 
they are. He puts the question of slavery thus : 

" Congress has no power under the Constitu- 
' tion over slavery in the States, ^ a- * * 
' But there is another power without which, I 
' fear, the end will escape us. It is that of con- 
' fiscation and liberation, and this power is just 
' as constitutional as the other two." -^^ ^ * * 

" In declaring the slaves free, you will at once 
' do more than in any other way, whether to 
' conquer, to pacify, to punish, or to bless." * * 

" By the old rights of war, still prevalent in 
' Africa, freemen were made slaves; but by the 
' rights of war which I ask you to declare, slaves 
' iviil be made free7nen." 

Is it unjust to the Senator to suppose that, aa 
he approaches this discussion, slavery casts its 
dark shadow before him, and obscures the light 
ia which he would otherwise read and interpret 
the powers of Congress? Is it unjust to con- 
clude that he hates slavery more than he loves 
the Constitution, and that to reach and throttle 
the one he is willing to march over the pros- 
trate form of the other ? Ami mistaken ia 
concluding that he has reached that state of 
mind which leads him to prefer that slavery 
and the Constitution shall die together rather 
than. that both shall live? 

Sir, my repugnance to this " relic of barba- 
rism " is not less than that of the lionorable 
Senator from Massachusetts. I do not hate 
slavery less. It would be ungracious to say 
that I love the Constitution more ; but I will 
say that my veneration for the one transcendi. 
my hostility to the other ; and that opposed, as 
every sentiment and instinct of my nature is, 
to the institution of slavery, and willing as I 
am to wound it, I yet confess myself afraid to 
strike it through the Constitution, or to pursue 
it outside of the Constitution, to wound it there. 
Why, Mr. President, this impatience to fly from 
the " ills we have to those we know not of?" 

In the legitimate and constitutional prosecu- 
tion of the war the fetters are falling from the 
slaves of the South faster than we can provide 
homes, the means of subsistence, and the means 
of intellectual and moral culture for the help- 
less, destitute, and, in many cases, degraded 
freed men and their families. Already they 
are beginning to press heavily upon the white 
population of some localities, and heavily upon 
the bounty of the Government. Who, sir, will 
dare to estimate the consequences, moral, po- 
litical, social, and economical, of precipitating, 
in one day, as the Senator proposes, four mil- 
lions of this population upon the white commu- 
nities of these States ? Who can contemplate 
them without a shudder ? Who has the reck- 
less hardihood to venture upon such a solution 
of this stupendous and oppressive problem of 
human slavery ? 

Before adopting the proposition of the Sen- 
ator, one of two things should be resolved upon. 



/ e? 



15 



We must either overcome all the repugnances 
of nature ; raze out from our hearts all the sen 
timents of delicacy and propriety which we have 
supposed instinctive; roll back the strong cur- 
rent of thought, and feeling, and habit, and edu- 
cation, and admit the negroes to a full, free, and 
unqualified social equality, or we must separate 
them from among us, and place them where 
their country, constitution, laws, customs, soci 
ety, shall aU be their own, and where there shall 
be a perfect and unrestricted community of 
legal, political, and social rights. 

The first of these can never be done. Heaven 
has decreed against it ; and as easily would the 
leopard change his spots, or the Ethiopian his 
skin, as we the firm, strong instincts of our na- 
ture. The second, then, is the only alternative ; 
and I look with hope to the coming of the day 
when the bright vision of universal emancipa- 
tion shall be realized ; when freedom shall rule 
the spacious world from clime to clime; when 
civilization and the arts shall penetrate every 
desert, ride upon every wave, and culture every 
shore ; and when the bond shall go free, and 
build up for themselves a republic bright and 
glorious as our own, and press onward with us, 
side by side, in noble emulation for the univer- 
sal diffusion of human culture and happiness. 
But the accomplishment of this requires time 
and wise caution. It cannot be done in a day. 
We must make haste slowly. The attempt to 
do it in a day will prove fatal to it forever. It 
would be one of those rash and extreme meas- 
ures which would inevitably defeat its own ends. 
The power of slavery on this continent is al 
ready broken. Its sceptre has departed ; its 
dominion is overthrown ; it can never regain 
its lost political, social, and economical import- 
ance. ■ It has reached the point where "the 
public mind rests in the belief that it is in pro- 
cess of fina.1 extinction." The question of ex- 
pansion is conclusively settled against it, and 
henceforward it will be a 

" Scorpion girt with fire, 
' In circle narrowing as it glows." 

Let us be patient, and let us be just, and thf=^^ 
storm that now beats upon us will soon have 
spent ita force ; the clouds which now so gloom- 
ily overhang us will soon be scattered, and calm 
and sunshine again overspread and bless the 
entire land. Let us stand by the Constitution 
and fulfil its pledge to " guaranty to every State 
in this Union a republican form of government, 
and to protect each of them against invasion," 
" and domestic violence." Let us not be se- 
duced "outside of the Constitution" by any 
temptation, however strong, and thus admit be- 
fore the nations that it has failed in the purposf- 
of its creation, and that we can no longer gov- 
ern in accordance with its provisions and re- 
quirements. The Senator's proposition is not 
to defend, maintain, and uphold the Govern 
ment we have ; but to rend its pillars asunder, 



and reconstruct another from its ruins. In 
what does this differ from the effort of our re- 
volted and rebellious people but'in the means 
proposed for its accomplishment? 

Admitting that in a " government bound by 
a written Constitution nothing can be done 
which is not in conformity with the Constitu- 
tion," the Senator insists that we shall go out- 
side of the Constitution to make his vfishes ac- 
complished facts. 

Admitting that " no person shall be deprived 
of life, liberty, or property, without due process 
of law," which means without presentment or 
other judicial proceeding, he yet urges upon 
us, by a simple act of legislation, to sweep 
millions of property from those over whom, as 
citizens, we claim and exercise jurisdiction. 

Admitting that " no attainder of treason shall 
work corruption of blood or forfeiture, except 
during the life of the person attainted," he yet 
asserts that " there is nothing in the Constitu- 
tion to forbid an absolute forfeiture " for trea- 
son, and urges that Congress shall at once pro- 
ceed to confiscate all the property, both real 
and personal, of certain classes of citizens of 
the United States, and that forever. 

Admitting that "the reason for proceedings in 
rem is " " that the thing is, in a certain sense, 
an offender, or at least has co-operated with 
the offender, as in the case of a ship in the 
slave trade," he yet maintains that proceedings 
in rem may be instituted against all the prop- 
erty of rebels, whereever found, simply be- 
cause it is their property, without any refer- 
ence whatever to the uses to which the prop- 
erty has been applied. 

Admitting that persons captured in battle 
" may be detained as prisoners till the close of 
the war, unless previously released by exchange 
or clemency," he yet contends that all prison- 
ers taken by our armies may instantly be 
handed over to the civil authorities, to be pur- 
sued and punished as criminals. 

Admitting that " Congress has no power 
under the Constitution over slavery in the 
States," he yet labors to prove the possession 
of the power by Congress, and presses upon us 
to use it, of declaring free ail the slaves in all 
the States of the Union. 

Mr, SUMNER. I must correct the Senator. 
My speech was with regard to the rebel States, 
not in regard to all the States of the Union. I 
made no allusion to any State that was not in 
rebellion. 

Mr. BROWNING. Admitting that " Con- 
'^ress has no power under the Constitution over 
slavery in the States," the Senator yet labors 
to prove the possession of the power by Con- 
gress, and presses upon us to use it, of declar- 
fig free all the slaves in all the rebel States of 
this Union, as he now says. 

Mr. SUMNER. The Senator will do me the 
justice to say that I place it on the rights of war. 

Mr. BROWNING. I do not care to hear 



16 



'?^ 



another speech at present. I care not on what 
power he places it. I deny and I defy, though 
I do not like to use that word, any man to 
point to one single word or letter in the Consti- 
tution which confers upon Congress any power 
to do any act in the exigency of war which it 
cannot do in times of peace. There, sir, is 
wliere the heresy lies. I give the Senator's 
own words, and while I desire to treat him with 
every possible respect, and have yielded to him 
repeatedly — a thing the Senator rarely does for 
the accommodation of anybody — I feel it incum- 
bent upon me, as an American citizen, to say 
nothing of my position as a Senator, to enter 
my most earnest protest against this danger- 
ous and revolutionary heresy that the powers 
of Congress are enlarged and amplified by a 
state of war. It overthrows the Government 
and accoraplifhes here in this Chamber what 
the rebels h ive not accomplished, and never 
can accoiiiplish. 

Such, sir, are the extremities to which the 
Senator is driven, the inconsistencies in which 
he is involved, by his effort to compass an ob- 
ject which, in my humble judgment, is not 
only unconstitutional, but which, if successful, 
will be fatal to the integrity of the Government 
itself, and change its entire character. Is it 
uncharitable to say that another object seems 
to lie much nearer the gentleman's heart than 
the crushing out of the rebellion and the re-es- 
tablishment of the authority of the Government 
in all the States ? 

I avov^ my object to be, with all the terrible 
enginery of war, to crush down and trample 
out, at once and forever, this wicked and dia 
bolical rebellion ; then to pursue and blast its 
leaders and fomeatorrf with the severest punish- 
ments that can be visited upon this most ma- 
lignant ftud nnpardonable treason, and to win 
back the hearts of the deluded masses to the 
good old Government which protected them 
through all the past, and which they cannot, 
even now, remember without a tear of grati- 
tude and a sigh of regret, and from the shelter 
of which they were cruelly enticed away to be 
exposed to the pelting of the pitiless storm of 
treason and rebellion which has wasted their 
fortunes, desolated their homes, murdered their 
families, embittered their lives, and darkened 
all their future. I wish to win them back ; and, 
as the strongest possible inducement to return, 
I wish there to be fully assured that when they 
come they will find the same beneficent Gov- 
ernment to which they had proved faithless, as 
magnanimous in mercy, as bounteous in bless- 
ing, as equal in justice, as strong in protection, 
as when they betrayed it. Through weal and 



through woe, in the sunshine of peace and amid 
the storm and tempest of war, I wish to stand 
by the Constitution. I desire that every battle 
fought and every victory won shall be fought 
and won under the Constitution and for the 
Constitution, and that every life that is poured 
out in this terrible strife shall be a libation to 
its great principles. Let us stand by the Con- 
stitution. We shall need its protection here- 
after more than we ever have heretofore. We 
shall need its restraints in the times to come 
more than we ever have in the times that are 
past. ^*'hen, hereafter, this Chamber shall be 
filled with Senators, fresh from the battle-field, 
whose laurels are yet green upon their browa, 
accustomed to command, and impatient of re- 
straint, let there be no act of ours to be drawn 
into Taad precedent in breaking down the bul- 
warks which the Constitution has erected for 
the security of the people. Let us leave no rec- 
ord behind to be pointed at as authority for en- 
croachment upon the powers and prerogatives 
of a co-ordinate department. Power is always 
grasping, always struggling for the enlarge- 
ment of its dominion. If we begin by denuding 
the Executive, how long will it be before the 
judiciary is stripped of its ermine, and all 
power concentrated in the hands of an irrespon- 
sible Legislature? When that is done, the hia- 
tory- of the Republic is closed, and the history 
of anarchy and despotism begins its melancholy 
record of tyranny, and oppression, and confu- 
sion, and blood. 

The beneficence of the Government in peace 
has been proven ; its strength in foreign war 
has been fully vindicated. Its power to breast 
Internal storms and commotions, and resist and 
subdue intestine foes, is now, for the first time, 
subjected to the terrible ordeal of experiment. 
If we rise to this great occasion, grapple suc- 
cessfully with the momentous events that are 
upon us, save the life of the nation, reunite it, 
and reassert its authority, and come from the 
conflict bringing the Constitution unharmed 
with us, perfect in its strength, and in the har- 
mony and majesty of its proportions, the page 
that bears the record of the achievement will 
be gilded with a brighter glory, will glow with 
a purer ray, than any in the annals of our race. 

The treasure and the blood we shall have ex- 
pended will not have been poured out in vain. 
Our country, now stooping under the chasten- 
ing rod, but dearer in her afilictions, will rise 
from her humiliation renewed and reassured 
in strength, and radiant with beauty, to resume 
her proud place among the nations, and blend 
the triumphs of her future with the glories of 
her past history. 



ar.A:-nrELL & oo., printbr-=!, corner of second street k kn'dia^ta avsmje, third floor 



LB D '05 



013 701795 




1''"!"^°^ CONGRESS 




7 • 



